The director of a legal entity (private limited company, public limited company, foundation, association, etc.) may be held liable by the tax authorities for tax debts not paid by the company (directors’ liability).
Mismanagement
Directors’ liability only arises in cases of (manifestly) improper management. This is the case where a reasonable director would not have acted in that way. See, for example, our article When is there a case of manifestly improper management?.
The Tax and Customs Administration must prove that there has been improper management. However, if the legal entity has not reported within two weeks that it is unable to pay the tax due (notification of inability to pay), there is a presumption of improper management. The director may, however, rebut this presumption.
Notification of inability to pay
A declaration of inability to pay can be made using the form provided for that purpose form. However, even if the Tax and Customs Administration becomes aware of the inability to pay in some other way, this still constitutes a valid notification of inability to pay.
Ongoing
In 2014, the Supreme Court It has been determined that, following a timely and correct notification of inability to pay, no further notifications are required for as long as the payment remains in arrears. Unless the Tax and Customs Administration has, following receipt of a payment, notified the taxpayer in writing that it no longer considers the inability to pay to exist.
In a case The issue before the Zeeland-West-Brabant District Court is whether, at any point, the arrears ceased to exist. The party concerned in this case contacted the Tax and Customs Administration in February 2012 regarding unpaid additional tax assessments. A payment arrangement was agreed for these assessments. The Court regards these discussions with the Tax and Customs Administration as a valid notification of inability to pay.
The Tax and Customs Administration subsequently also issued additional tax assessments for the periods from March 2012 to June 2012 inclusive. Following the company’s bankruptcy, the Tax and Customs Administration held the director liable for all unpaid additional tax assessments. The Court ruled that the valid notification of inability to pay, made in February 2012, remained in force. This is not affected by the fact that the additional tax assessments imposed after February 2012 were paid in accordance with the normal payment schedule. This is because each of those assessments was only paid after a reminder and/or enforcement order had been received. After February 2012, there was consistently a payment arrears.